SEIS EIS Qualifying Trades

Tax relief for investors under both the SEIS and EIS hangs on the trade qualifying under the legislation. Sometimes we can find a ideas to bring the trade within the legislation. Answering questions relating to trading status is a specialist area for us.

Our services relating to qualifying trades for SEIS/EIS include:

What is a qualifying trade;

Excluded activities; and

HMRC advance assurance.

What is a qualifying trade for SEIS & EIS

The legislation relating to what is or what is not a qualifying trade is the same for both SEIS and EIS tax relief. The money raised by an SEIS/EIS share issue must be used for a qualifying trade.

Generally, most trading companies will be regarded as carrying on a qualifying activity for SEIS purposes if:

The trade is conducted with a view to a profit; and

Does not to any substantial extent include any “excluded” activities.

Excluded activities for SEIS and EIS

The types of activities which will not qualify for SEIS or EIS include:

Dealing in land, commodities or futures, if those futures are shares, securities or other financial instruments;

Dealing in goods: other than in an ordinary trade of retail or wholesale distribution;

Licencing: receiving royalties or licence fees. However, if your company has created an intangible asset, e.g. software, which you licence to others, this is not an excluded activity;

Providing legal or accountancy services;

Property development;

Farming or market gardening;

Forestry: holding, managing or occupying woodlands, any other forestry activities or timber production;

Shipbuilding;

Coal production;

Steel production;

Hotels: operating or managing hotels, or comparable establishments, or managing property used as a hotel or comparable establishment;

Nursing homes: operating or managing nursing homes, or residential care homes, or managing property used as a nursing home or residential care home;

Electricity generation: generating or exporting electricity which will attract a Feed-in Tariff, unless generated by hydro power or anaerobic digestion, or unless carried on by a community interest company, a co-operative society, a community benefit society or a Northern Irish industrial and provident society

Services to excluded activity: providing services to another person where that person’s trade consists, to a substantial extent, of excluded activities, and the person controlling that trade also controls the company providing the services

Excluded activities are subject to caveats which may mean that the trade can qualify for SEIS/EIS.

Substantial activity

A company can carry on some excluded activities, but these must not be a ‘substantial’ part of the company’s trade. HMRC defines ‘substantial’ as more than 20% of the company’s activities.

Ancillary services

Providing services ancillary to excluded activities may be okay. So, for example providing advisory services in the financial sector is acceptable, even though financial activities themselves are excluded. The HMRC have gone on record as stating: “The provision of services, such as advice on financial matters, is not covered by the exclusion”.

However, the trade of supplying an individual to perform an excluded activity may not be a qualifying trade. Cases show the trade of supplying an accountant was within the “supply of accountancy services”. Therefore accountantcy is not a qualifying trade.

Purchasing commodities as raw materials

Dealing in commodities is excluded. However, if you purchase a commodity as a raw material for your manufacturing operation, you are not disqualified even though you:

Buy commodities in the commodity markets;

Trade in the future markets to fix your raw material prices.

Royalty or licence fees

Receiving royalty or licence fees is excluded. However, this is waived where the royalties or licence fees are attributable to the exploitation of ‘relevant intangible assets’.

“Intangible assets” has the meaning under normal UK accounting practice. An asset is a relevant intangible asset if it has essentially been created by the company which has issued the shares. Hence software development is a qualifying trade for SEIS and EIS.

HMRC for advance assurance

If you consider your trade is borderline, apply to HMRC for advance assurance that your entire SEIS proposal complies on form SEIS AA. HMRC is normally bound by an assurance if the form provides:

Complete and accurate information;

All the information to allow HMRC to determine whether all the requirements are likely to be met.

HMRC will want to review your Articles of Association and any shareholders’ agreement or investment agreements. We draft or review these documents to make sure they comply.

Gannons gave us suggestions for how we could change the trade to bring it within a qualifying trade for EIS purposes.

We were not sure of whether our trade qualified for SEIS. Gannons gave us peace of mind by obtaining an HMRC clearance.

Gannons is the trading name for Gannons Commercial Law Limited. Registered in England and Wales with company number 08914222. Authorised and regulated by the Solicitors Regulation Authority with SRA number 612616. Registered office at 20-21 Jockey Fields, London WC1R 4BW. Privacy Policy